techdirt

I think I have a problem, dear readers. My problem is that Techdirt, one of my favorite websites, keeps bringing me bad news… and I suspect that Techdirt is one of my favorite websites precisely because it keeps bringing me bad news. Well, in case you suffer from the same malady, here’s the bad news.

First, a bit of background. There’s this website called Escher Girls, dedicated to pointing out the ridiculous ways women get portrayed in comics. The name is a reference to M.C. Escher, famous sketcher of twisty structures and impossible building. The implication is that the way these women are drawn is obviously impossible, and that their bodies would have to twist and warp like an Escher building to hold those poses. And when you look at the actual images being criticized…
…I think it’s a fair criticism, and a well-chosen title.

But some people don’t like having their work criticized, which brings me to the bad news. A certain Randy Queen, creator of Darkchylde, didn’t like the treatment he was getting from Escher Girls, and he decided he was going to do something about it. Specifically, he was going to force the site to take down his pictures and stop making fun of them. And thanks to the DMCA, he had the power to do so! And that’s how this happened:

So yesterday I found out that Randy Queen (artist of DarkChylde) filed a bunch of DMCA takedown notices to Tumblr to remove posts of his covers on this blog (the entire posts, not just the images). I’ve also gotten messages from other users that he’s had their stuff removed too (redraws, etc that have been featured here). Non-critical Tumblr posts of his art/covers and those praising his work appear to be unaffected.

DMCA takedowns, oh how I hate them. The world would be better off without the DMCA, and I for one pledge to never use it. But Randy Queen sees nothing wrong with using it, even against people who aren’t “pirating” his work in any way, just poking fun at it. And if that were all that Randy did, I’d still be mad at him. But he didn’t stop there, oh no. He decided to get personal:

Dear Eschergirls and Kim,

I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer.

Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today.

At this point, I will ask you to please move along, as no good will come of this.

Additionally, instead of taking shots at art someone did 18 years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time and energy on creating your own characters and comics which you can make your own personal sacrifices to bring to the world.

Sincerely,
~R

Randy wasn’t satisfied with taking down the posts making fun of him. He decided to take down the post talking about the posts making fun of him. After all, we peons have no right to sully the “perception of [his] IP”, now, do we? We must honor his “personal sacrifices” and refrain from “taking shots”, musn’t we? Move along now, before Randy gets mad and this gets ugly.

Well, I’m not moving anywhere. I don’t like it when people pick on blogs I like, I really don’t like it when people use the DMCA, I really really don’t like it when people threaten to sue someone for criticizing them, and I just hate it when someone does all of these things at the same time. I’m not going to keep quiet about this.

Randy Queen, hear this: the way you draw women makes me wonder if you hate them, and the way you handle criticism makes me want to hate you. The folks at Escher Girls were well within their rights (their legally recognized rights, no less!) to make fun of your work, and your artwork deserves to be made fun of, and if you think you have any special right to “protect the perception of [your] work”, you’re not just wrong, you’re a fool! You’ve abused our legal system, taken away other people’s rights, and made the world a slightly worse place. You owe Ami and everyone else an apology. Grow up, and let people mock your comics in peace.

But I don’t actually expect Randy to wise up any time soon. While I was writing this post, I got more bad news, this time from this post at Popehat. Randy’s now throwing accusations of “harassment” and “character assassination”, and he continues to urge us all to draw our own pictures instead of making fun of his, and also to think of people and animals suffering and dying in the world, and real human rights issues in certain countries (no, really, that’s what he said, go read the letter). Well, guess what, Queen: free speech is a human right, and censorship is a real human rights issue, and you’re censoring. Quit it.

For the sake of preservation, here’s one of the images that Randy ordered Ami to take down:
And here’s what Ami said in the now deleted post:

One leg is twice as long as the other.

On the other hand, this looks like the best prom ever.

And there’s what Randy is trying to censor. Not this time, Mr. Queen. Not this time.

As far as I can tell, this decision rejects a lot of well-established precedent (making a mockery of the so-called “rule of law”) and ignores a lot of technical details (details that the consumer is not allowed to ignore; remember that breaking DRM is illegal even if the DRM is preventing you from doing perfectly legal things) in favor of handing more power over to the “content creators”, meaning the publishing and broadcasting companies. Now, ignoring the letter of the law is not something I necessarily oppose; the “rule of law” is not a good concept, and there are times when you should set aside the letter of the law to better fulfill the spirit. But consider the spirit that the Supreme Court has established here. It appears to me to be a spirit of control, dictating who can record and view the broadcast companies’ precious signals. It looks to me like a spirit of assumption of guilt. Consider this excerpt from the official decision; after the court notes the technical differences between Aereo and cable, it dismisses them:

But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”

In other words, because Aereo feels like cable, it must be cable.

If that still doesn’t strike you as awful, consider this hypothetical. Someone makes a car that looks a lot like a plane, and designs the controls and driver’s seat such that driving the car feels a lot like flying a plane. But it can’t fly; in fact, its “wings” are spoilers that push the car into the ground, and its engine is within street-legal limits so it could never provide enough thrust to get off the ground, and so on. Of course, the reason the car looks and feels like a plan is because that’s its selling point – the car maker advertises the special car as “feeling just like flying!” The FAA catches wind of this, takes a look at the car, and says: “This is a plane. You need a pilot’s license to operate it.” “But wait!”, the maker protests. “It can’t fly at all! It’s within legal limits and safe for street driving, and I can prove it!” “Doesn’t matter”, the FAA replies. “It looks like a plane and feels like a plane, so it’s a plane.” And so the special car never takes off (pun intended), because it’s useless as a plane but you have to have a pilot’s license to drive it.

This is what the Supremes have done to Aereo. They have ruled that perception trumps reality. Sorry, Aereo, but you make the cable companies feel bad, so you have to go.

But this is nothing new in IP law. Techdirt has another good post on this subject: The Bizarro, Fact-free World Of Copyright Policymaking. The crux of that post is that when it comes to “intellectual property” law, evidence doesn’t seem to matter at all. Everything is based around perception. If sharing a file feels like theft, then theft it must be, even if this defies sound information theory and negates the concept of freedom of expression.

Jack Valenti and his co-conspirators failed to kill the VCR, but they never give up in their fight for control. And why should they give up? By the time the Betamax came around, they had already captured the cable companies. And now, though Jack is dead, his spirit lives on, and his successors have captured Aereo, and they’re probably going to kill it, because Aereo dared to offer a service that they didn’t control.

Don’t let the hype fool you, folks. We may have the freedom to complain, but we don’t live in a free country. The elites make the rules for their own benefit, and Valenti cackles from the grave.

I’m an infrequent commenter on Techdirt, and my replies there occasionally get rather long-winded. One particular reply, to this post, got long enough that I feel it’s worthy of a post all by itself. So, without further ado, In defense of pirates:

There is an idea that, in my opinion, is very important in any discussion of copyright/patent/IP. The idea is this: “Content creators deserve to get paid for each and every use of their content”. Whether that content is a song, a program, a design, or any other kind of information, the idea is that the maker of that information has a right to be rewarded for every use of that information.

This idea appeals to our notions of fairness, especially when you consider an analogous physical situation: the skilled craftsman, whom I will call “maker” because I’m a Doctorow fanboy. A very good maker has the power to make something that no one else can make, like a Stradivarius violin, and there’s no way to get a violin like that without either buying it from Stradivarius or buying it from someone else who bought one… or stealing it, of course, but we have ways of preventing theft. The point is that the maker has total control of how many copies there are of what they sell, and whenever you see a copy in the wild, you can safely assume that the maker got paid for it.

Moving back to the realm of information, we still have skilled makers, making patterns of information that no one else could have made. We value what they make, and we want them to be rewarded, just as the physical makers are rewarded… and the information makers want to get paid, so our interests line up. So far, so good.

But now we run into trouble: information, unlike physical goods, is very easy to copy. It may take a genius to write a good book, but any common scribe can copy it. And then there are the copy machines. In fact, go take a look at all the books you own, and tell me: how many of them are copies? In my case, the answer is: all of them. I don’t own any original manuscripts (unless you count my own writings, but I don’t consider my jumbled piles of scribblings to be books). If I want to read something by, say, Edgar Allen Poe, I don’t have to ask Poe to write me a fresh copy, nor do I have to deprive anyone else of their copy. I just need someone who’ll let me make a copy of their copy. And whenever I see a copy of Poe’s work in the wild, I can usually assume that Poe wasn’t paid for it, since the vast majority of existing copies (including the one on my hard drive) were made long after his death!

Now, this offends our notions of fairness! “How can someone get something for free? Someone had to have lost something!”, we think. And so we call copying “theft of intellectual property” or “piracy”, because it feels like something got stolen. But this is wrong. Nothing has been stolen. No one’s purloined a violin. Neither the maker nor the customers have lost anything when one customer makes their own copies and gives them away.

Now this is the point in the discussion where pro-copyright folks bring up sunk costs. It takes time, talent, and energy to make good content, just as it does to make a good violin. Surely the content deserves some protection, yes? But wait! Somebody moved the goalposts. “Sunk costs” didn’t even come up when we were discussing the Stradivarius. Why bring them up now?

But more generally, sunk costs are irrelevant, for 2 reasons:
1. There is no direct relation between sunk costs and quality. There’s a lot of literature on this subject, but here’s my favorite piece of evidence: going by official records, the most expensive film in history was Spider-Man 3. Whether you count inflation or not, that’s the top. Worth the investment? I didn’t think so.
2. There is no end to the amount of monopoly that we can justify by appealing to fixed costs. We could even justify slavery (The landowners put a lot of time and money into raising those negroes, so don’t they have a natural right to claim the product of the negroes’ labor?). Unless we’re trying to justify the total state, we need to do better than to appeal to costs.

In fact, let me harp on that second point some more. Sunk costs were the justification for DRM. And what is DRM? It is the loss of control of your own computer. It invades your privacy and takes over your property. Snowden’s leaks are only the latest reminder of how dangerous this sort of thing is. Crooks and elites are all too eager to gain control of our lives, and we shouldn’t be giving them any opportunity to do so. That’s why DRM is inherently bad (Why, Mozilla? Why?). I won’t let anyone try to justify it with a sob story of how much it costs to make good cinema.

Now then, if DRM can’t be justified on the basis of sunk costs, what can be justified? For the effects of copyright are in need of justification.

Remember the central idea, that content creators deserve to get paid for each and every use of their content (or at least, for every copy). The practical effect of this is to deny customers their freedom to communicate. They must either report to the creator for every copy they make and submit to a fine, or they must refrain from copying at all. This is a broad prior restraint on speech and press. Is it justified?

It gets worse. All manner of communication goes on in private, and all of it is potentially full of illicit copies. If we want to pay the creators for every copy, we’ll have to either revoke the right to privacy in order to track down the copies, or we’ll have to pass a blanket tax on private communication (in effect, assume that all people are guilty and punish them in advance). The current U.S. legal system has both the loss of privacy and the punitive tax. Are either of these justified?

In summary, the idea of getting paid for every copy is nice, but there’s no way to implement it without compromising or abandoning other nice ideas, such as free speech, privacy, presumption of innocence, and secure ownership of personal property. That’s a lot to give up, and for very questionable benefits, too.

That’s why I have no qualms with “piracy”, and I refuse to condemn the file-sharers. Not because they’re heroic or anything like that, but just because they’re doing nothing wrong. Copying, sharing, and ruining people’s business plans are natural human activities, and no one has any business trying to outlaw them.